Texas to appeal water ruling

Updated 8:32 pm, Friday, March 15, 2013

The ongoing drought has caused a decline in blue crabs. The crabs are the main food for the whooping cranes.

The ongoing drought has caused a decline in blue crabs. The crabs are the main food for the whooping cranes.

Photo: Jerry Lara / San Antonio Express-News

Texas to appeal water ruling

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Texas has brought in its top litigator to appeal a federal court ruling that the state was responsible for the deaths of 23 endangered whooping cranes.

On Friday, District Judge Janis Jack denied a request to postpone the enforcement of her Monday ruling that Texas has to come up with a plan to increase the freshwater going into San Antonio Bay to protect the estuaries that cranes need. She banned the Texas Commission on Environmental Quality from issuing more water withdrawal permits on the San Antonio and Guadalupe rivers.

The case started with the filing of lawsuit by the Aransas Project, a coalition of business, environmental and civic organizations that depend on and care about the health and productivity of the estuaries around San Antonio Bay.

In seeking a stay of Jack's ruling, state Attorney General Greg Abbott wrote that the decision “will impose irreparable harm on the state's economy and its drought-affected residents.” On Friday, Jack did ease the ban on permits, allowing those needed to “protect the public's health and safety.”

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If Jack's overall ruling stands, the Guadalupe Blanco River Authority has the most to lose. The largest water provider in the basin, it has two large permit applications pending to construct new reservoirs, one for water to the Interstate 35 corridor and the other for chemical industries and communities near the coast.

The GBRA's annual operation budget is $50 million, General Manager Bill West said.

It has already spent more than $6 million fighting the suit.

“We are most pleased that the case has been assigned to the solicitor general,” West said.

That the state opted to appeal the ruling is discouraging to others.

“I think that we are wasting time and money, and our region would benefit from doing an (habitat conservation plan) to stop the conflict and work out solutions,” said Dianne Wassenich, program manager of the San Marcos River Foundation.

Wassenich was one of 40 stakeholders who reached a compromise last year on how to balance the environmental and economic needs of those who pump from the Edwards Aquifer and those who rely on its spring flows.

The plan they developed gives assurance to those who rely on the Edwards for water and protects the endangered species that live in the springs at San Marcos and New Braunfels.

“We need this stability for the river basin as well, and we are not getting it by fighting in court,” she said.

In her ruling, Jack blasted the expert testimony presented by the GBRA.

She pointed out that veterinary pathologist Richard Stroud baselessly suggested gangrene might be the cause of death of a crane because one of the bird's joint tissue was green.

She also wrote that biologist Douglas Slack's opinion about the survey methods used at the wintering grounds of the cranes changed only after he was hired by the GBRA and he had no field observations or research to support his statements about the freshwater needs of cranes but instead had “just made it up.”

The Aransas Project is, according to its lead attorney, Jim Blackburn, confident about going up against Texas' top lawyer.

“This is really about the future of water in Texas,” Blackburn said, which means balancing the competing needs in a river basin.